UPDATED: A Funny Thing Happened on the Way to the Recount*

UPDATE: Despite the fact that the panel of seven senators that will be tasked with resolving the SD 25 election has not even yet been selected and named, let alone met to take up the messy problem, the Maine State Senate webpage has been amended to give the win to the Republican candidate, Cathy Manchester:

About the 127th Maine State Senate

All members of the 127th Maine Senate have been elected to serve a two-year term. Of the 35 members, there are 21 Republicans and 14 Democrats. Eight are women (4 Republicans and 4 Democrats) and 27 are men (17 Republicans and 10 Democrats).

A pair of press conferences were held on Monday with each side repeating their stance as to whether what occurred was a mistake or something more deliberate:

“It appears that there was just a clerical error that 21 ballots didn’t get counted. And we’re glad they’ve been counted. But we want to find out for sure,” said Senator Roger Katz, R-Augusta.

“We expect Republicans to share this concern of potential ballot tampering because, again, this is not about a political party, it is about the integrity and confidence we can all have when we cast our ballot,” said outgoing Senate President Justin Alfond D-Portland.

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Senator District 21 Elect Nate Libby of Lewiston is congratulated by Secretary of State Matt Dunlap.

Before Thanksgiving, the Secretary of State’s office was tasked with settling a handful of disputed elections, as happens periodically. At one point, WCSH and MPBN reported there would be recounts in Senate District 2 (Aroostook County) and 13 (Lincoln County). But later it was confirmed that the requests for both had been withdrawn.

That left three races for resolution in Senate Districts 11, 21 and 25. These recounts were a result of either being automatically generated due to the closeness of the initial tallies or per request of a candidate. Preliminary totals via BDN:

— Senate District 11 (Waldo County), Democrat Jonathan Fulford versus Mike Thibodeau. According to unofficial election results compiled by the Bangor Daily News (the Secretary of State’s office has not yet posted its results), the incumbent Thibodeau won the seat 9,064 votes to 8,949, a 115-vote margin. Thibodeau, the former Senate minority leader, was nominated by his Republican peers Friday to be president of the Senate for the 127th Legislature, though that is subject to approval by the full Senate when it convenes in December.

— Senate District 21 (Lewiston), Democrat Nathan Libby versus Republican Patricia Gagne. According to the BDN’s unofficial results, Libby was victorious by a vote of 6,636 to 6,572, a 64-vote margin. This seat was formerly held by Democrat Margaret Craven, who opted not to seek re-election.

— Senate District 25 (part of Cumberland County), Democrat Catherine Breen versus Republican Cathleen Manchester. According to the BDN’s unofficial results, Breen took the seat by a vote of 10,897 to 10,890, a seven-vote margin. This seat was previously held by independent Richard Woodbury, who opted not to seek re-election.

The manual examinations included recounting all ballots separately for each municipality within the district, searching for any potentially overlooked ballots accidentally tucked into stacks of absentee envelopes, ensuring that the overseas ballots from other areas of the state were either not accidentally included or that overseas ballots were not accidentally omitted and investigation of all rejected ballots.

The process of recounting the ballots is methodical, meticulous, slow and tedious work, carried out by Deputy Secretary of State Julie Flynn and her staff in the Florian Room of the Maine Public Safety Building in Augusta. The entire proceedings, open to the public, included teams made of an official from the Secretary of State’s office working with both a registered Democratic and Republican volunteer. There were attorneys for both parties available throughout the recounts to weigh in on disputed ballots, irregularities and the like, as well as other support staff tabulating the final tallies before the final certification for each race.

Results were made public by Secretary of State Matt Dunlap in press releases and on Facebook.

Senate District 25 recount began at 9am on November 18.

(Friday, Nov. 14) Senate District 11:“In the State Senate District 11 recount, results show that Republican Michael Thibodeau is the winner. Jonathan Fulford (D) received 8,974 votes, while Thibodeau received 9,109 in the recount.”

(Monday, Nov. 17) Senate District 21: “The State Senate District 21 (City of Lewiston) recount is now complete. Results show that Democrat Nathan Libby remains the winner, with 6,646 votes to Republican Patricia Gagne’s 6,563.”

(Tuesday, Nov. 18) Senate District 25: …

And here’s where “a funny thing happened”.

By 5 pm on the 18th, not only was there no clear winner after all of the present ballots were re-examined, but it was told to this reporter that a box of ballots had been discovered to still be in Westbrook and being brought to Augusta by Maine State Police- an unusual turn of events that meant a further delay of SD 25’s final results.

Maine Secretary of State Matt Dunlap

Even funnier- later on that evening, Secretary of State’s office issued the following statement:

“The State Senate District 25 final results will be decided by the Senate. The recount showed a reversal in the apparent winner, with Catherine Breen (D) getting 10,916 votes and Cathleen Manchester (R) getting 10,927, but the results were not accepted by both candidates.

When the Legislature convenes in January, its standing Senatorial Vote Committee will review the situation and make a recommendation to the full Senate on which candidate should be seated for the full term. (The committee is made up of four majority and three minority members.) The Senate will then make the final determination of which candidate to seat, typically no later than January.”

Soon it was learned that at the center of the dispute were not ballots from Westbrook, but rather almost 2 dozen new GOP ballots from Long Island. Immediately calls for a full investigation into potential voter fraud began:

Unanswered questions remain about 21 ballots from the town of Long Island that can’t seem to be attributed to any voter. The ballots were discovered on Nov. 18, the night of the recount, and all of them contained a vote for Republican Cathleen Manchester of Gray, who had requested the recount.

During an election, wardens at each polling place keep track of which registered voters have cast ballots. This ensures that no one gets to vote twice. The incoming voter list, or “voter manifest,” in Long Island indicated that 171 residents cast ballots either in person or absentee in this year’s election.

That’s the same number of votes presented by warden and Town Clerk Brenda Singo in unofficial results relayed on election night to the Bangor Daily News and the Associated Press. Long Island, a town of about 230 residents, has only one polling place, and Singo was the only warden.

However, when the locked box of ballots was opened during the recount, 192 ballots were found. Put simply, there are 21 more ballots from Long Island than there are documented voters.

Incoming Senate President elect Mike Thibodeau, who himself had been subject to a recount, had this to say:

“I think the committee could convene and go over the results on swearing-in day. We’ve got to figure out if Cathy Manchester has the most votes. It’s unfortunate to throw around terms like that without some sort of substantial evidence. The fact of the matter is that we have had a recount and the results of that recount left Cathy Manchester as the apparent winner. Because some folks are not happy with that outcome, they’re throwing around some pretty wild accusations.”

Rep. Janice Cooper (D-Yarmouth) represents House District 47, which consists of Yarmouth, Long Island and Chebeague Island, has called for Attorney General Janet Mills to look into the matter.

“One of two things has to happen to put this matter to rest: the state attorney general or the U.S. Attorney should immediately conduct a thorough, independent criminal investigation of the circumstances of this discrepancy, one that involves questioning all relevant witnesses under oath and forensic experts.

Our state Constitution provides that it’s up to the Senate to decide the qualifications of its members. However, that does not absolve state or federal prosecutors from doing their job. The Senate president-elect says he will appoint a special committee to look into the matter. However, whether or how independently that investigation is conducted is up to them. Because a majority of the committee will be members of the same party as the recount winner, the outcome is bound to be suspect as politically biased unless the investigation is truly impartial and thorough.

It’s entirely appropriate for a political body to make political decisions, as we do on proposed legislation or nominations. Sometimes, however, the Legislature must act in a quasi-judicial role, which is not easy.

Years ago, I was counsel to the U.S. House Judiciary Committee in an impeachment case concerning removal of a federal judge for alleged conspiracy to commit bribery. The case came to the House with a massive record from a criminal trial, grand jury and independent counsel’s investigation. Nevertheless, the House also conducted its own investigation, subpoenaing and deposing witnesses under oath, conducting forensic investigations, etc. We then presented our case first to the House of Representatives and then to the U.S. Senate. For the most part, the proceedings followed judicial rules of evidence. The judge was impeached, convicted and removed from office.

This is what a quasi-judicial legislative inquiry should look like. Whether the Maine Senate is prepared to go to this length remains to be seen. Frankly, they don’t have the resources or the expertise, even if they had the will.

That’s why we should leave it to professional prosecutors to conduct the inquiry. The Senate can seat whom it wants, but whether that decision stands or is set aside by the courts would very likely hinge on the outcome of a professional inquiry. Nothing less will do.“